Monday, September 26, 2005

Endangering the species

While the war in Iraq and Katrina have provided plenty of evidence of the Bush administration's incompetence at governing, it's worth remembering that the Republicans now running the show are in fact very good at one thing: promoting bad policy that favors corporate interests and the wealthy, always at the expense of average citizens.

In general, this has meant a steady parade of efforts to overturn the real advancements made by liberals in the previous century, from Social Security to progressive taxation to civil and reproductive rights.

The latest, and in some ways most troubling, of these campaigns to reach fruition is the evisceration of the Endangered Species Act. Republicans are depicting this as a "moderate" reform, but the reality is that it is a radical remake of American environmental law.

And what's especially troubling is the near-utter silence emanating from the left -- from the blogosphere to congressional Democrats -- in response.

Indeed, some six Democrats on the House Resources Committee voted last Friday, 26-12, to forward to the full House a piece of legislation that would end the ESA's legacy of effective protection of endangered species.

The bill is H.R. 3824 [PDF file], given a Newspeak title, "Threatened and Endangered Species Recovery Act of 2005."

-- This bill eliminates the ESA's requirement that critical habitat be designated for endangered species, substituting a provision that only a small part of the important habitats -- those that do not stand in the way of developers -- may be deemed special enough by the Secretary of Interior, often subject to political pressure, to warrant designation in the recovery plan. In addition, the bill assigns the task of developing recovery plans to industry-dominated "recovery teams" who are not likely to understand the need for habitats.

-- The bill would also require the government to pay property owners at fair market value for any loss that results from protecting endangered species. Sounds fair enough on the face of it but the responsible agencies have virtually no budget for such compensation, and if compensation isn't paid, the government could not enforce the act. Thus, congress would simply cease enforcement of the Act on budgetary grounds. If a gravel pit would destroy an essential foraging area used by orcas or salmon, for example, then this bill would require the government to give the owner the market value of the land. Since it is unable to pay for the land, the strip mine would go forward, perfectly legally.

-- And the bill would require agencies to make snap judgments within 90 days about whether a project would threaten an endangered species, or the project would become exempt from the ESA. However, judging the effects of a particular project may take much longer than that. NMFS still has not reached consensus about what caused the Puget Sound orca population to decline, or how to address the problems or how future activities might affect them. Determining the impact of a proposed project could take much longer than 90 days. This change alone would essentially give industry and property owners carte blanche to flatten, pave or pollute whole habitats.

-- The proposed legislation would politicize the ESA's enforcement with a provision requiring the Interior secretary to define what constitutes the "best available scientific information." Other provisions would make it difficult to block damaging projects or add to the list of 1,370 plants and animals considered threatened or in danger of extinction.

-- The "no surprises" rule in the bill, saying that once a project is allowed to go forward there can be no further questions asked, assumes that government agencies will get it right the first time, a level of faith in government not generally warranted. The status of Southern Residents is in flux and the theories about how to help them survive are very difficult to resolve into a coherent strategy. NMFS and Fisheries and Oceans Canada are both still at the draft stage of conservation and recovery plans. A rushed plan that is stacked against the whales (see above), combined with a "no surprises" rule, would allow anyone to destroy habitat with gleeful abandon. Canada requires review of conservation plans every five years.

-- A last minute amendment to this bill gave legal immunity to the chemical industry, repealing ESA provisions that protect fish and wildlife from harmful pesticides. This is another of the "other purposes." Pesticides indirectly harm orcas by reducing salmon runs, the whales' primary food source. Other chemicals, such as PCB's and PBDE's need to be addressed more directly, but this bill would set a precedent by saying that some causes of extinction won't be addressed at all, to suit the short term needs of certain favored industries.

Perhaps one of the most stark illustrations of the effects of the bill -- authored by Rep. Richard Pombo, R-Calif. -- is its certain impact on the resident orcas of Puget Sound. The National Marine Fisheries Service only recently listed them as a threatened species, and that will certainly come to an abrupt end if the bill passes:

If this bill passes, the Southern Resident Orca Community (J, K and L pods), scheduled for listing under the Endangered Species Act in December 2005, would immediately lose the protection and conservation provided by the ESA, as would the 14 listed salmon runs the whales depend on for their sustenance and survival.

Representative Pombo has long criticized the Endangered Species Act because few species have recovered and been taken off the endangered list (though many others are clearly making progress toward that goal). Ironically, the Pombo bill makes the recovery of species less likely rather than more. This is virtually guaranteed by three provisions of the bill.

The first allows environmentally harmful actions to proceed if the Fish and Wildlife Service and National Marine Fisheries Service cannot evaluate them within a 90 day review period. Already, the cash-strapped Services are unable to meet many of the deadlines imposed on them. The new review deadline will exacerbate this problem for the Services, with the altogether new consequence that if the Services cannot review a proposed action within the deadline, the action can proceed – even if the result would make recovery unattainable.

The second provision undercutting prospects for recovery includes changes to the provision of the law requiring regulations for “threatened” species. Current law requires regulations that meet a highly protective standard (“necessary and advisable for the conservation” of the species). The Pombo bill eliminates any requirement for regulations protecting threatened species at all. If regulations are nevertheless promulgated, they no longer have to meet the existing protective standard.

The third provision putting new obstacles in the path to recovery are changes that make it harder for federal agencies to cooperate in the implementation of recovery plans. Currently, federal agencies often take on important tasks to implement recovery plans. Under the Pombo bill, they would be prevented from doing so unless they first enter into a draft agreement outlining what they intend to do, publish that draft agreement for public comment, and then publish both a final agreement and responses to all public comments received.

None of these bureaucratic obstacles to the voluntary implementation of recovery plans by federal agencies currently exists. All will add red tape to interagency cooperation, making implementation more costly and ultimately less likely.

Pombo's claims to be making species protection more effective is nothing short of baldfaced lying. The most noxious element of the bill is its repeal of the "critical habitat" provisions of the ESA. As a National Wildlife Federation report [PDF file] explains:

To justify this repeal, Rep. Pombo claims that he has replaced critical habitat with a better habitat protection tool, set forth in the bill’s recovery plan provisions. However, the Pombo bill merely states that recovery plans must identify areas of "special value" to the conservation of the species. Unlike the Act’s current critical habitat feature, the Pombo bill does not require that recovery plans identify the habitats needed for conservation (i.e., recovery) of the species. There is no definition of "special value." Thus, only a subset of the important habitats -- those that do not stand in the way of powerful developers -- may be deemed special enough to warrant designation in the recovery plan. The Pombo bill assigns the task of developing recovery plans to industry-dominated "recovery teams" who are not likely to agree to a broad definition of "special value" habitats.

The House is scheduled to vote on this travesty in a matter of days. It appears doomed to certain passage, unless mainstream Americans start banging the drum to stop the march of this extremist agenda.

Sara Robinson has worked as an editor or columnist for several national magazines, on beats as varied as sports, travel, and the Olympics; and has contributed to over 80 computer games for EA, Lucasfilm, Disney, and many other companies. A native of California's High Sierra, she spent 20 years in Silicon Valley before moving to Vancouver, BC in 2004. She currently is pursuing an MS in Futures Studies at the University of Houston. You can reach her at srobinson@enginesofmischief.com.